More behind defendant’s bail than Herald implies

Judges in all our trial courts are guided by statutes and rules of procedure when they consider bail and terms of release hundreds of times each day, in more than 100 court sessions across the commonwealth. It is their duty to do so, and it is not always easy.

It is against this backdrop that I take issue with your Oct. 5 editorial, “Judicial activism must end.”

There can be no dispute that there should be cause for concern, even cause for alarm, if the judiciary encroaches on the responsibilities of the Legislature or the prerogatives of the Executive branch. The separation of powers is placed in the first three articles of our Constitution, even before the bill of rights. It is undisputedly a sacred principle. And, if it actually and impermissibly occurs, judicial activism should “end.”

The editorial recounts the bail decisions made by two Superior Court judges concerning a defendant accused of child rapes and other serious crimes. While one may not agree with judgments exercised by them, the judges did not interfere with any executive or legislative function or mandate, but rather closely hewed their decisions to the laws and procedures that govern those determinations.

Let me unpack the facts I gleaned from several news accounts.

At the defendant’s arraignment in the District Court, the assistant district attorney requested that the judge deny bail, and detain the defendant, under a statutory provision that authorizes detention of those accused of felonies involving physical force, based on proof by clear and convincing evidence both that the defendant is dangerous, and that “no conditions of release will reasonably assure the safety of any other person or the community.”

The District Court judge did so, and the defendant exercised his statutory right to review in the Superior Court, before Judge Timothy Feeley. The judge’s statutory duty was to determine anew whether the prosecutor proved both statutory requirements by clear and convincing evidence.

There was no discussion in any of the news accounts of the evidence provided by the prosecutor. What I gleaned was that Judge Feeley found that although the evidence proved the first requirement, it did not prove the second; that is, there was not clear and convincing evidence to support detention. Accordingly, the judge applied the middle ground provided in the statute, which was to set a cash bail, and restrict the defendant to home confinement, to be electronically monitored by a GPS device attached to his ankle. On these facts, Judge Feeley did nothing wrong, and did everything in conformance with the governing law.

The news accounts indicate that, after Judge Feeley’s decision, the prosecutor received new information, alleging that the defendant was overheard on a jailhouse recording, conspiring to murder his victims. Such facts, if established, would support detention. I note that Judge Thomas Drechsler, who had rotated into the session, ordered the defendant into custody, and continued the hearing so the commonwealth could present evidence of its claim, and the accused, with counsel, could confront it. That process harkens to several additional protections in our Bill of Rights that protect all citizens, and promote the rule of law, which some folks sometimes feel is in peril. These decisions are not always easy, but when they are done thoughtfully and ethically, and conforming to the law, they are entitled to some quantum of respect.